Citation NR: 9718106
Decision Date: 05/22/97 Archive Date: 06/03/97
DOCKET NO. 95-30 946 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an increased rating for bilateral pes planus
with left heel spur, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C.C. Bruu, Associate Counsel
INTRODUCTION
The veteran had active duty from May 1943 to December 1945.
This case comes to the Board of Veterans’ Appeals (Board) on
appeal from a May 1995 rating decision of the Buffalo, New
York Regional Office (RO) of the Department of Veterans
Affairs (VA) which denied an increase in a 10 percent rating
for service-connected bilateral pes planus with left heel
spur.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his bilateral pes planus with left
heel spur is so severe as to warrant a disability rating in
excess of the current rating of 10 percent.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports an
increased evaluation, to 30 percent, for bilateral pes planus
with left heel spur.
FINDING OF FACT
The veteran's service-connected bilateral pes planus with
left heel spur is severe in degree.
CONCLUSION OF LAW
The criteria for a 30 percent evaluation for bilateral pes
planus with left heel spur have been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
Service medical records reflect the veteran had pes planus of
the first degree at the time of entrance into service and pes
planus of the second degree at separation. The veteran
sustained injuries to the right leg and ankle in November
1944 when another soldier accidentally dropped a hand
grenade.
A rating decision in February 1946 granted service connection
for a right ankle disability and denied service connection
for flat feet. A rating decision in October 1946 granted
service connection for bilateral pes planus and assigned a
noncompensable rating, and a rating decision in October 1947
increased the rating for bilateral pes planus to 10 percent.
(The veteran’s right ankle condition is currently rated 20
percent and is not the subject of the present appeal.)
In May 1994, the RO received a letter from the veteran’s
congressional representative, advising of and enclosing a
copy of a recent letter from the veteran. The veteran stated
he had been seeing a VA podiatrist for the last seven or
eight months for a problem with his left foot and X-rays
showed the problem was a heel spur. He stated a doctor told
him his problem was torn ligaments attached to the heel. He
stated he was treated and was told he would benefit from
orthotics but was not eligible for them. He stated he wished
to be reevaluated to determine whether his condition
warranted a rating in excess of the 10 percent currently
assigned to his disability of the feet (bilateral pes
planus).
VA outpatient records covering the period of August 1993
through June 1994 were received. In August 1993 it was noted
there were continued complaints regarding the feet. No
diagnosis or treatment of the feet was noted. In October
1993 it was noted that left heel pain was 80 percent
improved. Diagnosis was heel spur syndrome. Treatment
included issuance of a low dye strap. In April 1994, the
diagnosis was “plantar fasciitis resolved.” The treatment
records also note other conditions, including gout.
A VA examination was conducted in June 1994. The veteran
complained of bilateral foot problems. He reported the
shrapnel injury to the right foot in service and complained
of a chronic weak feeling in the right arch. He reported no
pain in the right foot or ankle. He complained of pain in
the left heel exacerbated by standing for long periods and
relieved by assuming a supine position. Physical examination
revealed 2+ dorsalis pedis and posterior tibial pulses
bilaterally; sensation intact; right ankle range of motion at
0 degrees dorsiflexion and 30 degrees plantar flexion; left
ankle range of motion at 10 degrees dorsiflexion and 40
degrees plantar flexion. On the right, he was able to toe
raise partially and it did not appear the posterior tibial
tendon was ruptured. There was no tenderness along the
posterior tibial tendon and he had a flexible flat foot. On
the left, he was unable to toe raise and had mild tenderness
over the heel. There was no tenderness over the posterior
tibial tendon. Both ankles were stable. X-ray findings
included old degenerative changes at the insertion site of
the Achilles tendon on the right side and a heel spur at the
origin of the flexor digitorum brevis on the left side.
There was decreased longitudinal arch on both feet, the left
more flattened than the right. Diagnoses were left heel spur
and left posterior tibial attenuation with right flat foot.
There was no evidence of posterior tibial tendonitis.
In its rating decision in May 1995, the RO found that the
left heel spur could not be dissociated with the service
connected flat feet; the RO recharacterized the disability as
bilateral pes planus with left heel spur, and a rating in
excess of 10 percent was denied.
In a June 1995 letter to the veteran, Charles W. Mistretta,
D.P.M., described findings at a recent office visit for
podiatric evaluation. The doctor stated he believed the
veteran’s left heel pain was secondary to plantar fasciitis.
His examination revealed pes valgo plantus foot type with
excessive subtalar joint pronation bilaterally, with the left
foot effected more than right. There was point tenderness to
palpation on plantar medial heels bilaterally, the left worse
than the right.
In his substantive appeal in August 1995, the veteran stated
his feet swell up markedly, especially in the evening, and he
cannot take walks for his health as that makes his foot
problem worse.
In a February 1996 letter to the veteran, Dr. Mistretta
stated his examination (in June 1995) also showed diffuse
keratosis under the second metatarsal head of the left foot
which was probably secondary to either a plantar flexed
metatarsal and/or abnormal weight bearing under the second
metatarsal head. He also stated his examination revealed the
left foot had calluses.
Analysis
The Board finds the veteran's claim, for an increase in a 10
percent rating for bilateral pes planus with left heel spur,
is well grounded within the meaning of 38 U.S.C.A. § 5107(a).
The evidence has been properly developed, and there is no
further VA duty to assist the veteran with his claim. Id.
Disability evaluations are assigned by applying a schedule of
ratings which represent, as far as can practicably be
determined, the average impairment of earning capacity.
Separate diagnostic codes identify the various disabilities.
8 U.S.C.A. § 1155; 38 C.F.R. Part 4. While the history of a
disability must be reviewed, the more recent evidence is the
most relevant in a claim for an increased rating, since the
present level of disability is of primary concern. Francisco
v. Brown, 7 Vet.App. 55 (1994).
A 50 percent rating is assigned for bilateral flatfoot which
is pronounced, manifested by marked pronation, extreme
tenderness of the plantar surfaces of the feet, marked inward
displacement and severe spasm of the tendo achillis on
manipulation, and a lack of improvement with orthopedic shoes
or appliances. A 30 percent rating is assigned for bilateral
flatfoot which is severe, with objective evidence of marked
deformity (pronation, abduction, etc.), pain on manipulation
and use accentuated, an indication of swelling on use, and
characteristic callosities. A 10 percent rating is assigned
for bilateral flatfoot which is moderate, with the weight-
bearing line over or medial to the great toe, inward bowing
of the tendo achillis, and pain on manipulation and use of
the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276.
VA outpatient records from 1993-1994 primarily refer to left
heel spur syndrome, which is rated as part of the bilateral
pes planus. Findings at the 1994 VA examination included
flattening of the arches of both feet, no tenderness of the
right foot, and some tenderness over the left heel. The
examiner did not describe any swelling or callosities of the
feet. Two letters from a private podiatrist describe
findings from a 1995 office visit. The doctor noted
bilateral pes planus with tenderness and excessive subtalar
joint pronation, with symptoms worse on the left. Left foot
calluses were also found; the doctor did not indicate whether
there were calluses on the right side.
The recent evidence collectively shows that the veteran has
some, but not all, of the findings indicative of severe (30
percent) flat feet (such as some pronation, accentuated pain
and manipulation and use, and callosities), and the left foot
is worse than the right one. With due regard to the benefit-
of-the-doubt rule, the Board finds that the veteran’s
bilateral pes planus with left heel spur more nearly
approximates the criteria for a severe (30 percent) than
moderate (10 percent) condition under Code 5276; thus, a
higher rating of 30 percent is warranted. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 4.7.
As the pronation has not been described as marked, and
medical evidence does not reveal extreme tenderness of the
plantar surfaces of the feet, marked inward displacement and
severe spasm of the tendo achillis on manipulation, and no
improvement with orthopedic shoes or appliances, the
condition is not pronounced (50 percent) in degree, and a
rating in excess of 30 percent is not warranted.
ORDER
An increased rating, to 30 percent, for bilateral pes planus
with left heel spur is granted.
L.W. TOBIN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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